Case Law: P. v. S.

2 Colum. J. Eur. L. 339 (1996)

Eva Brems. Fellow, Foundation for Scientific Research-Flanders, Institute for Human Rights, Katholieke Universiteit Leuven, Belgium.

The case law section has been prepared in cooperation with the Institute for European Law, Katholieke Universiteit Leuven.

Case C-13/94, P. v. S. and Cornwall County Council, December 14, 1995, not yet reported

Equal treatment of men and women; Dismissal of a transsexual

1. Facts and Procedure

P., a British citizen with the physical attributes of a male, was working from April 1991 as a manager in an educational establishment operated by the Cornwall County Council. In April 1992, P. informed S., the Principal and Chief Executive of the establishment, of her intention to undergo a sex-change operation. At that point, S. appeared supportive and tolerant. In the summer of 1992, P. was absent on sick leave as a result of initial surgical treatment with a view to her gender reassignment. During that time, S. and the board of governors decided to dismiss her. She was given three months’ notice, expiring on December 31, 1992. She worked at home those three months, which coincided with the “life test” period preceding the final surgical operation, during which she dressed and behaved as a woman. The final operation was performed on December 31, 1992.

On March 13, 1993 P. brought an action against S. and the County Council before the Truro Industrial Tribunal on the ground of sex discrimination. While the defendants argued that the reason for P’s dismissal was redundancy, the Industrial Tribunal established that she was dismissed solely and exclusively because of the sex change. The Industrial Tribunal found that this situation was not covered by the Sex Discrimination Act 1975. However, the Tribunal found that the Community Directive on equal treatment for men and women could possibly be interpreted to include protection of transsexuals. The Tribunal referred that question of the directive’s interpretation to the Court of Justice for a preliminary ruling, and the Court responded in its judgment of December 14, 1995.

2. The Court’s Reasoning and Decision

The relevant Community law is Council directive of February 9, 1976 “on the implementation of the principle of equal treatment for men and women as regards access to employment, vocational training and promotion, and working conditions.” Article 5(1) the directive states that “[a]pplication of the principle of equal treatment with regard to working conditions, including the conditions governing dismissal, means that men and women shall be guaranteed the same conditions without discrimination on grounds of sex.” It is the phrasing “on grounds of sex” which in the eyes of the Truro Industrial Tribunal could possibly cover discrimination on the ground of a sex-change operation.

The United Kingdom and the Commission argued against such an interpretation. They took the formalistic stance that there was no sex discrimination, because P. would also have been dismissed if she had been a person with the physical attributes of a female, undergoing gender reassignment toward the male sex.

The Court quickly dismisses this reasoning. It states that “[iun view of its purpose and the nature of the rights which it seeks to safeguard, the scope of the directive is also such as to apply to discrimination arising, as in this case, from the gender reassignment of the person concerned.” The reference to the “purpose and nature of the rights” concerns the right not be discriminated against on grounds of sex, which is “one of the fundamental human rights whose observance the Court has a duty to ensure.”4 The equal treatment directive “is simply the expression, in the relevant field, of the principle of equality, which is one of the fundamental principles of Community law.” In the Court’s reasoning, the fundamental nature of the equality rule seems to warrant a broad interpretation. It states that discrimination arising from gender reassignment “is based, essentially if not exclusively, on the sex of the person concerned” because the person in question “is treated unfavourably by comparison with persons of the sex to which he or she was deemed to belong before undergoing gender reassignment.” The Court repeats its insistence on the fundamental nature of the principle at issue by arguing that to tolerate discrimination on the basis of a sex-change would signify a failure to respect that person’s dignity and freedom. It concludes that “dismissal of such a person must therefore be regarded as contrary to article 5(1) of the directive, unless the dismissal could be justified under article 2(2). Article 2(2) excludes from the field of application of the directive those occupational activities “for which, by reason of their nature or the context in which they are carried out, the sex of the worker constitutes a determining factor.” This is not relevant in the present case. However, while it is clear that on the basis of Article 2(2), a person can be dismissed on the basis of a sex-change if the “initial” male or female sex was a determining factor for the job, one may speculate whether this article would allow for a dismissal if the “unchanged” aspect of the sex is argued to be essential for a particular job. The Court interprets Article 5(1) “discrimination on grounds of sex” as including not only “discrimination on the ground of being either male or female” but also “discrimination on the ground of undergoing a sex-change operation.” Yet, the Court did not clarify if this interpretation of the sex criterion be extended to the exception of Article 2(2). If this is the case, employers would be able to justify the dismissal of a person undergoing a sex-change operation by demonstrating either that this person’s “initial” sex was a constitutive element of the job, or that the continuity of the employee’s sex was a constitutive element. However, the nature of the jobs for which this could be successfully argued remains unclear.